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Owners who exploit weak patents were much better off before IPR existed. They could threaten companies and software developers with impunity, knowing it would cost hundreds of thousands of dollars, if not millions, to fight back. That makes sense—the administrative judges at the Patent Office have the background and education to evaluate patents on their technical merits, unlike district court judges and juries.

That drastically raises the difficulty, and cost, of invalidating the worst patents. In practical terms, having to provide clear and convincing evidence instead of a preponderance is like having to get the ball to the 25 yard line instead of just having to make it over the 50 yard line. But, that provision is a weak consolation prize, which does almost nothing to make up for the harm the rest of the bill would do.

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